Attachment of accounts

from Wikipedia, the free encyclopedia

In German law , attachment of an account is the seizure of a bank account of the debtor (account holder) in the context of foreclosure by a court-obtained attachment order according to § 829 ZPO (mostly in connection with a transfer order according to § 835 ZPO), of a credit institution ( bank or savings bank ) as third party debtor and the debtor delivered must be. In particular, current accounts , but also bank balances in the form of savings and time deposits, can be the subject of an account attachment.

The law on the reform of the protection of account seizure of July 7, 2009 came into force on July 1, 2010 and has fundamentally reorganized the previous protection of account seizure.

Legal bases

The attachment of accounts is a subtype of foreclosure in claims and other property rights, which is finally regulated in §§ 828 ff. ZPO. Insofar as accounts at credit institutions have attachable parts, these can be attached by

For both forms, restrictions and prohibitions apply according to § § 850 to § 852 of the ZPO (according to § 319 AO or § 5 VwVfG ) and other legal provisions for the attachment of claims and claims.

Credit institutions' obligation to provide information

According to Section 840 (1) ZPO, third-party debtors - in the case of attachment of accounts, i.e. the account-keeping bank or savings bank - are obliged to provide the creditor with the following information ( declaration of third-party debtor ) within two weeks of delivery of the attachment :

  1. whether and to what extent they recognize the claim as justified and are willing to make payment,
  2. whether and which claims other people make on the claim,
  3. whether and because of which claims the claim has already been attached for other creditors,
  4. whether within the last twelve months a seizure pursuant to Section 833a Paragraph 2 has been revoked or the non-attachability of the credit has been ordered (version up to December 31, 2011) with regard to the account whose assets have been attached , and
  5. whether the account whose assets have been seized is a seizure protection account within the meaning of Section 850k (7).

Further information would be desirable for the attaching creditor, but such requests are not covered by the enforcement law and the enforcement title ( Section 851 (1) ZPO in conjunction with Section 613 sentence 2 BGB ). In particular, information on the amount of the current account balance is inadmissible with regard to the banking secrecy that still has to be observed in the case of account attachment .

Attachment of the payment claim

The attachment of the entitlement to the daily credit neither changes nor terminates the current account relationship. Rather, payments to the creditor are entered into the current account as current account-related services by the bank, as are cash withdrawals or other dispositions by the debtor of the credit balance . The account holder can only claim payment of a sum of money from the bank once the credit has been credited.

Future balances

The attachment order may stipulate that the account holder's balance claims arising in the course of the accounts at the time of the attachment and in the future are attached. An additional seizure of the future balance is therefore undisputedly permissible. As a rule, PfÜB will be on future balances in order to be able to use the seizure of future account balances and not to hit a debit account with a mere seizure of the daily balance.

Attachment in credit lines

The seizure of the claims for the execution of transfers to third parties can only acquire legal significance if there is a cover base for the transfer orders, be it in the form of a credit balance or a credit. A distinction is made between only tolerated overdraft loans and expressly agreed credit facilities .

Non-seizure of the tolerated overdraft

The mere tolerance of an account overdraft - as it is mentioned in No. 18 of the Sparkasse GTC - does not give the customer any attachable claim to credit against the bank . A tolerated overdraft is understood to mean making use of the account “which is not covered by a credit balance or a credit line granted”. A garnishment of an account does not apply to debit accounts if it is a tolerated overdraft. The claim is therefore not attachable if the overdraft is only tacitly accepted by the bank. In the case of an unauthorized account overdraft, there is no entitlement to the loan before the bank's execution of the payment order - which also represents the implied acceptance of the customer's offer to conclude the loan agreement - but only a chance that the bank will tolerate the overdraft.

Attachability of the overdraft facility ("open credit line")

With the overdraft facility, the account holder either only receives a letter in which the credit has been granted unilaterally, or a simple message appears on the account statement that an overdraft facility can be used immediately. From a legal point of view, this is a “unilateral declaration of intent” by the bank. In the case of such an overdraft facility, the bank's disbursement action is always preceded by the request by the customer, with which the unilateral declaration of intent is accepted and thus the entitlement to payment is justified. A loan claim exists here - possibly only for a short time - and the garnishment, which is deemed to have been made with the call, becomes effective.

  • Seizure before access by the customer: The seizure takes effect only when the customer calls up the funds made available to him within the framework of an agreed open credit line (i.e. has access to them by cash withdrawal or transfer). However, if the customer does not dispose, the garnishment does not apply.
  • Can be seized after being called by the customer: The bank customer's claims against the bank from an agreed overdraft facility ("open credit line") can in principle be seized, provided the customer makes use of the credit. The right to payment of a promised loan is basically assignable and therefore also attachable. The bank is obliged to pay out as soon as and to the extent that the account holder makes use of the credit approval by means of a corresponding disposition (e.g. request for cash payment, issuance of a transfer order) in the amount of a certain amount of money. Those who process their payment transactions exclusively with the help of credit have to put up with the fact that they can only continue to use the funds available to them in this way after they have satisfied the attaching creditor.

Withdrawal block

Assets of a natural person attached to a credit institution may only be paid by the institution four weeks after delivery ( Section 835 (3) sentence 2 ZPO, July 1, 2010) of the transfer decision to the third-party debtor in favor of the obligee, so that the debtor may still receive the Can apply for judicial clearance of non-attachable incoming wages (so-called performance block). Within this period, credit institutions may not pay out to the attachment creditor - unless the attachment debtor issues an express order in this regard, e.g. B. to end the attachment.

Earned income

The work income of the account holder is subject to seizure protection up to a certain amount in order to secure the subsistence level according to § 850c ZPO.

When the work income is credited to the current account at a bank, the wage and salary entitlement expires in accordance with Section 362 (1) of the German Civil Code (BGB) through fulfillment and, with it, any seizure protection in accordance with Section 850 et seq. ZPO. With the account credit, a new payment claim based on an independent legal basis has arisen against the bank in accordance with § 675f ff. BGB, the protection of which is regulated separately in § 850k ZPO. According to this, § 850k ZPO does not apply to the legal relationship between the credit institution and the customer. § 850k ZPO does not prevent the account-keeping bank from debit accounts (= accounts with debit balance) from the current account offsetting of the garnishment-free work income transferred to the giro account of its customer. In contrast to the provision of Section 55, Paragraph 1, Clause 1 of SGB ​​I , which (only) applies to social benefits until December 31, 2011 , Section 850k, Paragraph 1 of the German Code of Civil Procedure (ZPO) does not stipulate any statutory non-seizure of earned income.

§ 850k ZPO granted protection only against a "seizure of the credit". The account holder was only able to achieve seizure protection with regard to the transferred income by applying to the enforcement court for the seizure to be lifted up to the amount not subject to seizure. Incontrast to Section 55, Paragraph 1, Clause 1 of SGB I, Section 850k (1) of the Code of Civil Procedure (ZPO) waslimited toproviding the debtor with account protection against enforcement access by his creditor by bringing about a decision by the enforcement court.

Since January 1, 2012, there has only been seizure protection with a seizure protection account (P account). Since then, it no longer matters where the credit on the P account comes from. It is therefore irrelevant whether the credit on the P-account is due to income from self-employment, an employee activity or social benefits.

social benefits

While a limited amount of seizure protection was granted on application for earned income, social benefits were non-seizable (but both regulations are only valid until December 31, 2011). This special account protection only applied to social benefits with a wage replacement function. The social benefits covered by Section 55, Paragraph 1, Clause 1 of Book I of the Social Code included, in particular, sick pay , basic security , unemployment benefit , unemployment benefit II , student loans , pension , housing benefit , childcare allowance and care allowance .

A credit to the account of the (service) beneficiary ( Section 55 (1) sentence 1 SGB I or Section 76a (1) sentence 1 EStG), which was based on such a service, was issued for the first 14 days since it was credited not covered by a garnishment, so that the debtor could dispose of it despite the garnishment of the account.

The non-attachability according to § 55 Abs. 1 SGB I led to the offsetting prohibition ( § 394 BGB), so that credit institutions were not allowed to offset incoming social benefits with their own claims, as far as these were not subject to a seizure, i.e. H. if social benefits were transferred to a debit account, they were not allowed to be offset against the debit / debit balance for a period of 14 days (since July 1, 2010; previously: 7 days) (but only valid until December 31, 2011).

In its judgment of December 20, 2006 (AZ VII ZB 56/06), the Federal Court of Justice strengthened the rights of social benefit recipients who are threatened with attachment of their accounts. The BGH thus granted recipients of social benefits the same rights as recipients of earned income. In analogous application of § 850k ZPO in the version valid until June 30, 2010, the persons concerned could submit an application to the enforcement court that from the outset and with effect for the entire duration of the seizure the amounts due to the recurring payments on the account in Scope of the seizure exemption limits have been exempted from the seizure. In contrast to the previous regulation, the debtor did not have to file a “reminder” against an account attachment every month after the seven-day period had expired. A single application is sufficient.

Section 55 SGB I has been omitted since January 1, 2012. It is therefore irrelevant, for example, whether the credit on the P account is due to income from self-employment, an employee activity or social benefits.

Offsetting protection for overdrawn P accounts that are in the minus ( overdraft facility) is only available for social benefits. The bank must provide the money within 14 days and may only withhold the account management fees. For all other incoming payments, there is no statutory protection against offsetting in the case of an overdrawn P account.

Disposal block

An account garnishment measure can act as a general "lock on disposal", be it that the account holder now refrains from disposals or that the bank takes the garnishment as an opportunity to terminate the loan. If the account holder no longer makes any dispositions on debit accounts with still free, contractually agreed credit lines due to the existing account attachment, the attachment is in any case in vain as long as no credits are received that the bank may offset in the balance. An account garnishment is expressly mentioned as a foreclosure measure in the terms and conditions for the reasons for loan termination. A loan termination due to garnishment leads to the bank making the existing debit balance due for immediate repayment and offsetting any incoming funds - even if these are actually non-attachable - against the debit balance. There is a risk of an account being closed if an account is permanently blocked due to account attachment and therefore further account management by the institute becomes unreasonable.

Cross-border attachment of accounts

Since in enforcement law with the principle of territoriality there are naturally limits to cross-border enforcement access to a debtor account located abroad, in principle only the issue of a domestic title and enforcement at the place of account management come into consideration. An exception to this is made in the member states of the EU, with the exception of Denmark and the United Kingdom, since January 18, 2017, the Regulation (EU) No. 655/2014, the European Account Attachment Regulation (EuKPfVO): The EuKPfVO is the first system cross-border enforcement access established in the European judicial area, which enables a creditor to achieve the attachment of the debtor's account directly - ie without permission from the state in which the account is kept - by serving a decision on the provisional attachment issued in Germany. The German implementation regulations can be found in §§ 946 ff. ZPO.

However, the EuKPfVO can only achieve a provisional seizure of the debtor's account in order to secure subsequent enforcement; it does not allow for satisfaction (Art. 1 Para. 1 EuKPfVO). If the creditor does not know the information on the debtor's account required for an application for a resolution on the provisional attachment of accounts, he can apply for account information in accordance with Art. 14 EuKPfVO. The possibility exists only as an accompanying and dependent on an application for the issuance of an attachment order, which is intended to prevent the risk of investigating the debtor (see recitals no. 20 and 21 of the EuKPfVO).

Garnishment protection

Rest position

As part of the foreclosure, creditors and debtors can conclude an installment payment agreement in which the obligee undertakes to the debtor to temporarily suspend the attachment of the account, so that the debtor can provisionally until a revocation is declared by the obligee or the delivery of another attachment of a subordinate creditor on the seized can dispose (so-called suspension of the attachment of the account). The bank is only obliged to cooperate and, in the event of a revocation by the obligee or a seizure by a subordinated obligee, must stop paying out the account balance to the debtor if it has agreed to the agreement restricting enforcement. However, since the seizure protection account has existed, banks have hardly agreed to the suspension.

Garnishment protection account (P account)

The obligee can restrict the content of an enforcement measure applied for or withdraw it, approve the annulment of an enforcement measure or the temporary suspension of enforcement in whole or in part, or waive in whole or in part the rights obtained through a seizure ( Section 843 ZPO). Since January 1, 2012, the debtor has been granted protection against seizure of accounts - apart from the general clause of Section 765a of the German Code of Civil Procedure ( ZPO) - through a protection account. In the case of an account attachment, it enables the debtor to dispose of the monthly amount free of attachment and serves to implement the welfare state requirement, i.e. to secure the socio-cultural subsistence level .

fees

In the case of attachment of accounts, the credit institutions are not allowed to charge any fees despite the high workload , as this is the fulfillment of a legal obligation and no special service is provided. This applies to both the processing and the monitoring of attachment measures.

statistics

This article or the following section is not adequately provided with supporting documents ( e.g. individual evidence ). Information without sufficient evidence could be removed soon. Please help Wikipedia by researching the information and including good evidence.

In Germany there are around 300,000 to 350,000 account attachments per month. The Munich District Court registered in 2014 a total of 24,806 applications for immunity of attachment and transfer decision. The Federal Statistical Office are for 2018 in Germany 17 completed process via an attachment order for cross-border cases after EuKPfVO on.

At Postbank AG, for example, the daily receipt of account attachments increased from approx. 950 (2004) to approx. 1,300 (2008). This centralized the processing in Dortmund, where 170 employees are exclusively concerned with the attachment of accounts and also cause additional work in the branches (forwarding, customer discussions). It turned out that 80 to 85% of the seizures cannot be serviced, whereby the share of public claims is over 50%.

Web links

Individual evidence

  1. ^ BGH WM 1978, 58, 59
  2. ↑ a b BGHZ 80, 172
  3. ↑ BGHZ 84, 325, 371
  4. ↑ BGHZ 93, 315, 325
  5. ↑ cf. Ganter in Horn / Krämer, Bankrecht (2002), pp. 135, 141; Staudinger / Kessal-Wulf , BGB revision 2004 § 493 Rn. 33
  6. ↑ BGH ZIP 2001, 825
  7. ↑ BGHZ 147, 193, 195; 157, 350, 355
  8. ↑ BGHZ 157, 350, 355 f; BGH WM 2004, 669, 670
  9. ↑ BGH WM 2004, 669, 670
  10. ↑ BGH NJW 2001, 1937
  11. ↑ BGH JR 1978, 419, 420
  12. ↑ This seizure protection only applies in the relationship between the employer who owes the labor income and the employee
  13. ^ BGH WM 2004, 1928, 1930
  14. ↑ a b c BGHZ 104, 309, 312ff.
  15. ↑ BGH NJW 1988, p. 2670; OVG Münster and OLG Hamburg, NJW 1988, p. 156 f.
  16. ↑ BGH, decision of December 20, 2006 - VII ZB 56/06 (PDF file; approx. 86 kB)
  17. ↑ § 850k ZPO old version
  18. ↑ Herbert Masslau: Alg II - BGH improves seizure protection, February 7, 2007
  19. ↑ Consumer advice center NRW, status: May 14, 2014
  20. ↑ cf. No. 26 Paragraph 2 d AGB-Sparkassen; No. 19 para. 3 AGB banks
  21. ↑ see e.g. B. No. 26 Paragraph 2 of the GTC Sparkassen
  22. ↑ Cf. Matthias Klöpfer, in: Geimer / Schütze (Hrsg.), Internationaler Rechtsverkehr in Zivil und Handelssachen, loose-leaf version 09/2016, Art. 1 ff.
  23. ↑ Burkhard Hess, Katharina Raffelsieper: The European Account Seizure Ordinance: An overdue reform to enforce cross-border enforcement in the European judicial area . In: IPRax . 2015, ISSN  0720-6585 , p. 46 ff .
  24. ↑ Matthias Klöpfer, in: Geimer / Schütze (Ed.), Internationaler Rechtsverkehr in Zivil und Handelsstachen, loose-leaf version 09/2016, Art. 14 EuKPfVO.
  25. ↑ BGH, decision of December 2, 2015 - VII ZB 42/14
  26. ↑ Andreas Grundmann: BGH: Creditors cannot force an account attachment to be suspended. The end of an excuse. Content and consequence of the decision of the Federal Court of Justice, decision of the BGH of December 2, 15 - VII ZB 42/14 February 2016
  27. ↑ BVerfG, decision of May 29, 2015 - 1 BvR 163/15 no. 18th
  28. ^ P account information for those affected by the debt counseling service in Hessen (PDF file; 117 kB).
  29. ↑ BGH, judgment of May 18, 1999 - XI ZR 219/98
  30. ↑ Peter Schönweitz: Seizure of the account, website accessed on October 20, 2019
  31. ↑ Press release 19 of April 16, 15. Accessed October 20, 2019.
  32. ↑ Federal Statistical Office: Fachserie 10 series 2.1: Administration of justice, civil courts September 20, 2019, p. 18